Kerala High Court
Kannur Fire Works Dealers Association vs The Chief Controller Of Explosives on 16 March, 2016
Author: P.B. Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938
WP(C).No. 17239 of 2016 (D)
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PETITIONER(S) :
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1. KANNUR FIRE WORKS DEALERS ASSOCIATION,
REPRESENTED BY ITS SECRETARY,
CAMP BAZAR, KANNUR-1.
2. JAMEELA FIRE WORKS
REPRESENTED BY ITS MANAGING PARTNER,
KODUVALLY,THALASSERY,KANNUR.
3. PANNIANORE PANCHAYAT CONSUMER CO-OPERATIVE
STORE LTD. NO.C 996, REPRESENTED BY ITS SECRETARY,
PANNIANORE, KANNUR.
4. P.NARAYANAN,
S/O.(L) BAPPU, KATTERI FIRE WORKS,
EACHUR, KANNUR DISTRICT.
BY ADVS. SRI.KALEESWARAM RAJ
KUM.A.ARUNA
RESPONDENT(S) :
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1. THE CHIEF CONTROLLER OF EXPLOSIVES,
A BLOCK CGO COMPLEX, FIFTH FLOOR SEMINARY HILLS,
NAGPUR, MAHARASTRA-440 006.
2. DEPUTY CHIEF CONTROLLER OF EXPLOSIVES
C 2, 3RD FLOOR, CGO COMPLEX,
KAKKANAD, ERNAKULAM, KERALA-682 030.
3. DISTRICT MAGISTRATE,
CIVIL STATION, KANNUR DISTRICT-670 002.
4. ADDITIONAL DISTRICT MAGISTRATE,
CIVIL STATION, KANNUR DISTRICT-670 002.
5. SUB INSPECTOR OF POLICE,
DHARMADAM POLICE STATION-670 113.
..2/-
..2..
WP(C).No. 17239 of 2016 (D)
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6. SUB INSPECTOR OF POLICE,
PANOOR POLICE STATION-670 110.
7. SUB INSPECTOR OF POLICE,
CHAKKARAKKAL POLICE STATION-670 003.
8. JOINT CHIEF CONTROLLER OF EXPLOSIVES
A AND D WING, BLOCK 1-8, IIND FLOOR,
SHASTRI BHAVAN, 26 HADDOUS ROAD,
NUNGAMBAKKAM, CHENNAI (TAMIL NADU)-600 006.
R1, R2 & R8 BY ADV. SRI.N.NAGARESH, A.S.G OF INDIA
R3 TO R7 BY GOVERNMENT PLEADER SRI. ARUNKUMAR M.R
ADVOCATE COMMISSIONER BY ADV. SRI.K.R.ARUN KRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27-07-2016, THE COURT ON 18-08-2016 DELIVERED THE
FOLLOWING:
Msd.
WP(C).No. 17239 of 2016 (D)
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APPENDIX
PETITIONER(S)' EXHIBITS :
P1 : TRUE COPY OF THE LICENCE UNDER FORM LE-5 OF
EXPLOSIVES RULES, 2008 BEARING LICENCE
NO. E/SC/KL/24/3 (E19774) ISSUED BY THE 2ND RESPONDENT.
P2 : TRUE COPY OF THE LICENCE UNDER FORM LE-5 OF
EXPLOSIVES RULES, 2008 BEARING LICENCE NO. 239
ISSUED BY THE 4TH RESPONDENT.
P3 : TRUE COPY OF THE LICENCE UNDER FORM LE-5 OF
EXPLOSIVES RULES, 2008 BEARING LICENCE NO. 328
ISSUED BY THE 4TH RESPONDENT.
P4 : TRUE COPY OF THE LICENCE UNDER FORM LE-5 OF
EXPLOSIVES RULES, 2008 BEARING LICENCE NO. 220
ISSUED BY THE 4TH RESPONDENT.
P5 : TRUE COPY OF THE ORDER DATED 16-03-2016.
P6 : TRUE COPY OF THE INTERIM ORDER DATED 30-03-2010
IN W.P(C).NO. 11075/2010.
P7 : TRUE COPY OF THE JUDGMENT DATED 18-05-2010 IN
W.P(C).NO. 11075/2010.
P8 : TRUE COPY OF THE AFFIDAVIT FILED BY THE PROPRIETOR
OF THE 2ND PETITIONER IN CMP.NO.631/2016 FILED IN
CRIME NO.364/2016.
P9 : TRUE COPY OF THE ORDER DATED 22-04-2016 IN
CMP NO.631/2016 IN CRIME NO.364/2016.
P10 : TRUE COPY OF THE ORDER NO.C(1)1505 DATED 01-03-2010
ISSUED BY THE DEPUTY CONTROLLER OF EXPLOSIVES FOR
THE 2ND RESPONDENT.
P11 : TRUE COPY OF THE JUDGMENT DATED 26-06-2015 IN
C.C NO.401/2011 BY THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-II, KANNUR.
P12 : TRUE COPY OF THE ORDER DATED 28-10-2013 IN KVATAAPPEAL
NO.2219/2012.
P13 : TRUE COPY OF THE TABLE PREPARED FOR SHOWING
THE AMOUNT OF TAX PAID BY THE PETITIONERS 2 AND 4.
P14 : TRUE COPY OF THE REPRESENTATION DATED 07-05-2016.
WP(C).No. 17239 of 2016 (D)
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RESPONDENT(S)' ANNEXURES :
ANNEXURE R2(A): TRUE COPY OF THE DETAILS OF WEIGHMENT READING
OF THE CONTRABAND BELONGING TO 2ND PETITIONER
DATED 11.06.2016.
ANNEXURE R2(B): TRUE COPY OF THE DETAILS OF WEIGHMENT READING
OF THE CONTRABAND BELONGING TO
THE 3RD PETITIONER DATED 11.06.2016.
ANNEXURE R2(C): TRUE COPY OF THE DETAILS OF WEIGHMENT READING
OF THE CONTRABAND BELONGING TO
THE 4TH PETITIONER DATED 11.06.2016.
ADVOCATE COMMISSIONER(S)' ANNEXURES :
ANNEXURE A: TRUE COPY OF THE NOTICES SERVED ON THE PARTIES
THROUGH RESPECTIVE COUNSELS.
ANNEXURE B: A TRUE COPY OF THE PHOTOGRAPHS SHOWING
THE STOCK OF SEIZED ARTICLES STORED IN
THE 1ST FLOOR OF DHARMADOM POLICE STATION.
ANNEXURE C: A TRUE COPY OF THE PROCEEDINGS OF THE ADVOCATE
COMMISSIONER DATED 27.06.2016.
ANNEXURE D: A TRUE COPY OF THE SEIZURE MAHASSOR PROVIDED
BY THE 5TH RESPONDENT TO THE COMMISSIONER.
ANNEXURE E: A TRUE COPY OF THE PHOTOGRAPHS SHOWING
THE STOCK OF SEIZED ARTICLES STORED IN
THE ADJACENT ROOM OF PANOOR POLICE STATION.
ANNEXURE F: A TRUE COPY OF THE PROCEEDINGS OF THE ADVOCATE
COMMISSIONER DATED 27.06.2016.
ANNEXURE G: A TRUE COPY OF THE SEIZURE MAHASSOR PROVIDED BY
THE 6TH RESPONDENT TO THE COMMISSIONER.
ANNEXURE H: A TRUE COPY OF THE PHOTOGRAPHS SHOWING
THE STOCK OF SEIZED ARTICLES STORED IN
THE ADJACENT PLACE CHAKKARAKKAL POLICE STATION.
ANNEXURE I: A TRUE COPY OF THE PROCEEDINGS OF THE ADVOCATE
COMMISSIONER DATED 27.06.2016.
ANNEXURE J: A TRUE COPY OF THE SEIZURE MAHASSOR PROVIDED BY
THE 6TH RESPONDENT TO THE COMMISSIONER.
WP(C).No. 17239 of 2016 (D)
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ANNEXURE K: A TRUE COPY OF THE REPORT SUBMITTED BY
THE REPRESENTATIVEOF THE 2ND RESPONDENT TO
THE COMMISSIONER AS CONCERNING HIS EARLIER
INSPECTION DATED.
//TRUE COPY//
P.S.TO JUDGE
Msd.
P.B. SURESH KUMAR, J.
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W.P.(C) No. 17239 of 2016
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Dated this the 18th day of August, 2016
JUDGMENT
The first petitioner is a registered association formed by the dealers of Fireworks and Crackers in Kannur District. Petitioners 2 to 4 are the members of the first petitioner association. Petitioners 2 to 4 are holding licence under the Explosives Rules, 2008 (`the Rules' for short) to possess and sell manufactured fireworks and Chinese crackers. Among petitioners 2 to 4, the second petitioner is holding two licences. As per Ext.P1 licence, the second petitioner is permitted to possess 300 Kg of fireworks and 1200 Kg of Chinese crackers. As per Ext.P2, the second petitioner is permitted to possess 50 Kg of fireworks and W.P.(C) No. 17239 of 2016 -2- 400 Kg of Chinese crackers. As per Ext.P3, the third petitioner is permitted to possess 50 Kg of fireworks and 400 Kg of Chinese crackers. As per Ext.P4, the fourth petitioner is permitted to possess 50 Kg of fireworks and 400 Kg of Chinese crackers. Respondents 5 to 7, the jurisdictional Sub Inspectors of Police seized the fireworks and crackers possessed by petitioners 2 to 4 on 12.04.2016 and 13.04.2016 on the ground that they were found possessing fireworks and Chinese crackers far in excess of the quantity permitted as per the licences issued to them. Cases have also been registered against petitioners 2 to 4 under Section 286 of Indian Penal Code and Section 9B of the Explosives Act, 1884. The case of the petitioners in the writ petition is that the explosives seized from their premises were not weighed as provided for under Rule 16 of the Rules and if the same had been weighed in accordance with the said Rule, there would not have been any occasion to effect seizure on the ground that they possessed excess quantity. The petitioners seek, W.P.(C) No. 17239 of 2016 -3- therefore, a declaration that the seizure of fireworks and Chinese crackers effected from their premises is illegal and arbitrary. They also seek directions to the respondents concerned to weigh the fireworks and Chinese crackers seized from their possession in accordance with Rule 16 of the Rules and return the same to them if it is found that the explosives possessed by them are within the permissible quantity. Alternatively, they also seek directions to the respondents to release the permissible quantity to them, if it is found that they possessed excess quantity and sell the excess quantity to licence holders.
2. On 01.06.2016, this Court has directed respondents 5 to 7 to weigh the explosives seized from the premises of petitioners 2 to 4 in the presence of a representative of the second respondent, the Deputy Chief Controller of Explosives, as provided for in Rule 16 of the Rules. Pursuant to the said order, a statement has been filed on behalf of the second respondent on 15.06.2016, stating, among others, that the quantity of fireworks and W.P.(C) No. 17239 of 2016 -4- Chinese crackers possessed by petitioners 2 to 4 were 4441.9 Kg, 5478.8 Kg and 2418.4 Kg respectively and that the seized quantities are far in excess of the licenced quantities. Since it was not evident from the said statement as to whether the explosives seized from the premises of petitioners 2 to 4 have been weighed in accordance with Rule 16 of the Rules, as per order dated 16.06.2016, the police officers concerned were directed to weigh the explosives again and an Advocate Commissioner was appointed for the purpose of supervising the weighment of the explosives seized from the possession of petitioners 2 to 4.
3. The Advocate Commissioner appointed in this matter filed a preliminary report stating, among others, that the explosives seized from petitioners 2 to 4 are found dumped at different places and it is humanly impossible to take out the same from the paper boxes and weigh them, as provided for in Rule 16 of the Rules. It is also stated by the Advocate Commissioner that such an exercise will be W.P.(C) No. 17239 of 2016 -5- dangerous also to human life. It is further stated by the Advocate Commissioner in the report that the representative of the second respondent who was present at the time of inspection, informed that in order to weigh the seized articles as per Rule 16, both the inner and outer packets have to be removed and once the same is done, the explosives can be kept thereafter only in a licenced magazine.
4. Later, an additional statement was also filed on behalf of the second respondent on 27.07.2016, wherein, it is stated that the weighment of the seized fireworks and Chinese crackers in accordance with Rule 16 of the Rules is a hazardous activity and it can be done only in a premises licenced to manufacture fireworks. It is also stated in the additional statement that the manufacturing facilities and the infrastructure for weighment of such huge quantities of fireworks are not available in the State of Kerala. It is further stated in the said statement that after removal of inner/outer packages of the fireworks, there is every W.P.(C) No. 17239 of 2016 -6- possibility of spillage of fireworks composition from the packages and that spillage of fireworks composition cannot be avoided during weighment and is susceptible to friction/ impact which may lead to fire or explosion. It is further stated that on opening the packages, the weighing of fireworks is not advisable on electrically operated weighing balance due to hazardous nature of the activity involved. It is also stated that if opened, the said fireworks shall be destroyed by burning, which would create environmental pollution and involves physical danger to the person associated in destruction of fireworks.
5. Heard the learned counsel for the petitioners, learned Assistant Solicitor General for the second respondent as also the learned Government Pleader.
6. Rule 16 of the Explosives Rules, 2008 reads thus:
"Weight of explosives :- The weight of explosives when referred to in these rules shall not include the weight of the packing box in which the explosives are packed:
Provided that in case of explosives of the Class 6 (Ammunition) or Class 7 (Fireworks), the weight shall be deemed to be the weight of the completed article inclusive of the case or W.P.(C) No. 17239 of 2016 -7- contrivance in which the explosive is contained, but shall not include the weight of the inner package and outer packing box."
It is evident from the Rule 16 of the Rules that the weight of explosives referred to in the Rules does not include the weight of the packing box in which the explosives are packed. In other words, the quantity mentioned in the licences obtained by the petitioners 2 to 4 can only be the quantity of the explosives without the weight of the packing boxes. As such, only if its is found that the weight of the explosives seized from the possession of petitioners 2 to 4, without the boxes in which they were packed, are in excess of the permissible quantity, it can be said that the petitioners have violated the Rules. Though the learned counsel for the petitioners vehemently asserted that had the explosives seized from the possession of the petitioners 2 to 4 been measured in accordance with Rule 16 of the Rules, the quantity would have been well within the permissible quantity, I am not impressed by that argument in the light of huge disparity in the quantity. The W.P.(C) No. 17239 of 2016 -8- petitioners are only attempting to take advantage of the inability of the officers concerned in weighing the quantity of explosives in accordance with Rule 16 of the Rules. As noted above, as far as the fourth petitioner is concerned, the licenced quantity was only 450 Kg, whereas the seized quantity was 2418 Kg. Likewise, the licenced quantity of the third petitioner was only 450 Kg, whereas the seized quantity was 5478 Kg. Again, in the case of the second petitioner, the licenced quantity was only about 2000 Kg, whereas the seized quantity was about 4500 Kg. True, the seized explosives were not weighed, but that by itself is not sufficient for this Court to exercise its discretionary jurisdiction to hold that the seizure is illegal. The question whether the seizure was illegal is a matter for the court trying the offence registered against the petitioners to consider.
7. It is seen that in both the statements filed on behalf of the second respondent, the second respondent has suggested that on the peculiar facts of the present W.P.(C) No. 17239 of 2016 -9- case, it is only appropriate to sell the articles seized from the petitioners to persons who hold licences in Form LE-5 and LE-3, since the destruction of huge quantity of fireworks may cause danger to environment, public safety and property.
8. Paragraph 7 of the statement dated 15.06.2016 reads thus:
"The seized stocks of fireworks are authorised type of fireworks and found in good condition, and may be disposed of by way of sale to holders to licence in Form LE-5 and LE-3 for possessing and sale of Fireworks granted under Explosives Rules, 2008, since destruction of huge quantity of fireworks may pose danger to environment, public safety and property."
The concluding paragraph in the statement dated 27.7.2016 reads thus:
"By taking the above facts into consideration, this Hon'ble Court may be pleased to dispose of the said fireworks by way of public auction through the District Magistrate."
In the light of the stand taken by the second respondent, it is only appropriate to direct the third respondent to sell the seized articles as suggested by the second respondent. W.P.(C) No. 17239 of 2016 -10-
In the result, the writ petition is disposed of directing the third respondent to sell the articles seized from the possession of the petitioners 2 to 4 in public auction to persons who hold licences in Form LE-5 and LE-3 under the Explosives Rules and deposit the proceeds of the sale before the court of the concerned Magistrate. Needless to say that the court of the concerned Magistrate shall pass appropriate orders for release of the said amount before or at the time of disposal of the cases registered against the petitioners.
Sd/-
P.B. SURESH KUMAR JUDGE bpr